Newmark v Rex (Cr.A. 72-1934. .)

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that the mere fact that the Employment of Natives Ordinance was a special law providing special remedies and penalties did not justify an order for a new trial if the circumstances would not justify such an order in an ordinary criminal case. An order for a new trial would not be just because it would probably lead to the admission of evidence which the trial magistrate himself improperly called and upon which he largely founded his decision, thereby loading the dice against the accused. The conviction was quashed and the order for a new trial set aside. The Court also held that an appeal lay from the Supreme Court's order, as that order constituted a 'decision' within the meaning of section 346.

Outcome

Appellant acquitted and discharged; any fine or payment to be refunded

Facts

The appellant was charged in the District Commissioner's Court, Nairobi, with wrongfully withholding wages of two former employees of the Avondale Hotel under section 55(1) of the Masters and Servants Ordinance. After the close of the prosecution case, the appellant gave evidence submitting that he was not the employer of the complainants within the meaning of the Ordinance. The Magistrate then, on his own motion, ordered that a summons be issued for the hotel proprietress, Miss Jarrett, to appear, stating that her appearance was necessary before a ruling could be given as to the accused's responsibility. Miss Jarrett gave evidence adverse to the appellant's case and the Magistrate found against him. The appellant appealed to the Supreme Court of Kenya, which held that Miss Jarrett ought not to have been called by the Court after the close of the case for the defence, but nevertheless ordered a new trial on the basis that the Employment of Natives Ordinance was a special law designed to protect native employees. The appellant then appealed to the Court of Appeal for Eastern Africa.

Issues

1. Whether the Supreme Court had power to order a new trial after finding that the trial magistrate improperly called evidence after the close of the case for the prosecution.
2. Whether the fact that the Employment of Natives Ordinance was a special law justified an order for a new trial in circumstances that would not justify such an order in an ordinary criminal case.
3. Whether an appeal lay to the Court of Appeal from an order of the Supreme Court directing a new trial, or whether such an order was merely a discretionary finding not constituting a 'decision' within the meaning of section 346 of the Criminal Procedure Code.

Orders

• Appeal allowed.
• Order of the Supreme Court directing a new trial set aside.
• Conviction by the Magistrate quashed.
• Appellant acquitted.
• Any fine or other payment made by the appellant in respect of the conviction to be refunded to him.

Rules and key headnotes

Legislation cited (6)

• Criminal Procedure Code s.346
• Criminal Procedure Code s.340
• Criminal Procedure Code s.196(a)
• Criminal Procedure Code s.241(a)(1)
• Employment of Natives Ordinance (Laws of Kenya, Cap. 139) s.55
• Masters and Servants Ordinance Cap. 139 s.55(1)

Cases cited (6)

• Rex v Harris [1927] 2 KB 87
• Rex v. Sukh Dev (1930) Lahore Reports, p. 539
• Rex v. Santokbhai Rawebhai, Volume XIII, Kenya Law Reports, p. 74
• Thompson v. Goold, 79 L. J.; K.B. 911
• Vickers, Son and Maxim, v. Evans, 19 L.J.; K.B. 9,55
• Rex v. Hertfordshire Appeal Tribunal 86. L.J.; K.B.p. 584

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